Affirmed and Opinion filed May 9, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-01115-CV
SOUTHWESTERN BELL TELEPHONE, L.P., D/B/A AT&T TEXAS, Appellant
V.
ED EMMETT, EL FRANCO LEE, SYLVIA GARCIA, STEVE RADACK, AND
JERRY EVERSOLE, AS MEMBERS OF THE HARRIS COUNTY
COMMISSSIONERS’ COURT; MICHAEL MARCOTTE, AS DIRECTOR OF
THE CITY OF HOUSTON DEPARTMENT OF PUBLIC WORKS AND
ENGINEERING; AND THE CITY OF HOUSTON, Appellees
On Appeal from 189th District Court
Harris County, Texas
Trial Court Cause No. 2007-38986
OPINION
Southwestern Bell Telephone, L.P., d/b/a AT&T Texas (“AT&T”) appeals from
orders (1) granting a plea to the jurisdiction filed by County Judge Ed Emmett and
Commissioners El Franco Lee, Sylvia Garcia, Steve Radack, and Jerry Eversole in their
official capacities (collectively, the “County Commissioners”); (2) granting summary
judgment in the alternative in favor of the County Commissioners; (3) granting summary
judgment in favor of the City of Houston and Michael S. Marcotte, director of the City of
Houston Department of Public Works and Engineering; and (4) denying AT&T’s motion
for summary judgment. We affirm.
BACKGROUND
This appeal stems from a dispute over who must bear the cost of relocating
AT&T’s telecommunications equipment located in a public right-of-way and attached to
Forest Hill Street Bridge in Houston, which spans Brays Bayou near the Ship Channel.
The dispute arises in connection with a plan to demolish the existing City-owned bridge
and replace it with a longer, wider one as part of a project to widen Brays Bayou.
AT&T says the Flood Control District must bear this cost. The Flood Control
District and the City say AT&T must bear it.
AT&T relies upon the following Water Code provision:
In the event that the district or the water supply corporation, in the exercise
of the power of eminent domain or power of relocation or any other power,
makes necessary the relocation, raising, lowering, rerouting, or change in
grade of or alteration in construction of any road, bridge, highway, railroad,
electric transmission line, telegraph, or telephone properties, facilities, or
pipelines, all necessary relocations, raising, lowering, rerouting, or change
in grade or alteration of construction shall be done at the sole expense of
the district or the water supply corporation unless otherwise agreed to in
writing.
Tex. Water Code Ann. § 49.223(a) (Vernon 2008). According to AT&T, the Flood
Control District “ma[de] necessary” and must pay for the relocation of AT&T’s
telecommunications equipment attached to the bridge as part of a larger channel-
widening program called the “Brays Bayou Flood Damage Reduction Project” – “Project
Brays” for short.
Planning for Project Brays has been conducted by the Flood Control District and
United States Army Corps of Engineers. The plan contemplates that approximately 30
City-owned bridges will be modified or demolished and rebuilt, including the Forest Hill
Street Bridge. The Flood Control District is paying to demolish and reconstruct the
bridges as part of Project Brays using contractors and consultants hired and paid for by
2
the district.
The Flood Control District and the City executed an Interlocal Agreement in 2004
to address control of and responsibility for the City-owned bridges affected by Project
Brays. Among other things, the Interlocal Agreement gives the City authority to review
and approve bridge drawings and specifications; access bridge construction sites; and
maintain and repair the new bridges upon completion. Section 8 of the Interlocal
Agreement between the Flood Control District and the City states: “Where the City has
the right to require a public utility company . . . to modify and/or replace its facilities at
its own cost, the City shall designate the District as the city’s project manager, and upon
written request . . . direct the public utility company . . . to modify and/or relocate its
facilities . . . at no cost to the City or to the District.”
On February 8, 2007, the Flood Control District’s director sent a letter to the
City’s director of the Department of Public Works and Engineering. This letter said
replacement of the Forest Hill Street Bridge “will require the replacement of various
utilities located on the existing bridge” and asked the City to direct AT&T to “modify or
relocate” its utilities at AT&T’s expense.
On March 9, 2007, the City sent a letter to AT&T in which the City directed
AT&T to relocate its facilities attached to the existing Forest Hill Street Bridge. AT&T
responded on April 30, 2007; AT&T said it would relocate its facilities “provided that . . .
the HCFCD agrees to reimburse AT&T Texas for 100% of the actual costs associated
with this relocation.” The City replied on May 16, 2007, and stated: “The fact that this
Public Works and Engineering project is being undertaken by the Harris County Flood
Control District on behalf of the City does not relieve AT&T from the responsibility to
relocate.” The City’s letter continued: “Should we not have an agreed schedule for
relocation within 60 days of the Final Notice, the City may act in accordance with
Section 40-397.”
The City’s invocation of Section 40-397 refers to Ordinance No. 2005-371, passed
on April 6, 2005. This ordinance amends Chapter 40 of the Code of Ordinances,
3
Houston, Texas, to add a new Article XVIII entitled: “Relocation of Privately-Owned
Facilities.”
Section 40-393(a) of this article states: “Whenever the city engineer determines,
in the exercise of sound engineering judgment, that a facility should be relocated for the
accomplishment of a public works project, the owner of the facility shall relocate the
facility at the owner’s sole expense in accordance with this article.” It continues: “In the
event that an owner’s failure to timely relocate a facility in accordance with this article
causes the city to incur expenses, damages, or losses, including loss of grant funds, for
any resulting delay, the owner of the facility shall be responsible for the city’s expenses,
damages, or losses.” In turn, section 40-397 sets forth various steps the City can take if
an owner fails to relocate at the owner’s expense; these steps include the City’s ability to
“[r]elocate the facility, or cause the facility to be relocated, on behalf of the owner and . .
. recover the cost of the relocation from the owner.”
Following receipt of the City’s letter in May, AT&T filed suit on June 25, 2007.
As discussed more fully below, AT&T subsequently amended its petition in an effort to
address certain constraints on subject matter jurisdiction. AT&T’s third amended petition
sought prospective declaratory and injunctive relief against the County Commissioners,
Marcotte, and the City. AT&T sought the following declarations with respect to the
Flood Control District, the City, and their respective agents and officials.
Section 49.223 requires the Flood Control District, and not AT&T, to bear
costs associated with relocating AT&T’s facilities on the Forest Hill Street
Bridge.
Section 49.223 controls over provisions of the City’s ordinance and its
utility relocation program that impose facility relocation costs in connection
with the Forest Hill Street Bridge on AT&T.
The Flood Control District and the City cannot require AT&T to bear the
expense of removing or relocating AT&T’s facilities under the ordinance or
4
the utility relocation program in connection with the Forest Hill Street
Bridge.
The Flood Control District and the City cannot take physical possession of
AT&T’s facilities on the Forest Hill Street Bridge or interfere with AT&T’s
telecommunications service under the ordinance and the utility relocation
program unless they comply with section 49.223.
The City cannot assess damages or recover relocation costs associated with
the Forest Hill Street Bridge from AT&T, or declare that AT&T waived a
damages claim, if AT&T fails to provide a satisfactory relocation schedule
within the timeframe allotted by the City or fails to comply with the City’s
relocation schedule.
AT&T also sought prospective injunctive relief to prevent the Flood Control District, the
City, and their respective agents and officials from enforcing the ordinance or removing
AT&T’s facilities on the Forest Hill Street Bridge.
The trial court resolved the case on motions in multiple orders. AT&T challenges
the trial court’s orders in three issues on appeal, asserting that the trial court erred by (1)
granting the County Commissioners’ plea to the jurisdiction, traditional motion for
summary judgment, and no-evidence motion for summary judgment; (2) granting the
City’s and Marcotte’s no-evidence motion for summary judgment and alternative
traditional motion for summary judgment; and (3) denying AT&T’s amended motion for
summary judgment.
STANDARDS OF REVIEW
Plea to the jurisdiction. A plea to the jurisdiction seeks dismissal because the trial
court lacks subject matter jurisdiction to hear the case. Harris Cnty. v. Sykes, 136 S.W.3d
635, 638 (Tex. 2004). A district court’s determination regarding subject matter
jurisdiction is a question of law that we review de novo. Tex. Dept. of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The plaintiff must allege facts that
5
affirmatively demonstrate the trial court’s subject matter jurisdiction over a case. Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
“Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s
subject matter jurisdiction is a question of law reviewed de novo.” Miranda, 133 S.W.3d
at 226. “Likewise, whether undisputed evidence of jurisdictional facts establishes a trial
court’s jurisdiction is also a question of law.” Id. “We construe the pleadings liberally in
favor of the plaintiff and look to the pleader’s intent.” Id. Courts do not decide the
merits of the case on a plea to the jurisdiction. See id.
Traditional motion for summary judgment. A traditional summary judgment is
appropriate under Texas Rule of Civil Procedure 166a(c) when a movant establishes that
there is no genuine issue of material fact and the movant is entitled to judgment as a
matter of law. Tex. R. Civ. P. 166a(c). A trial court’s grant of traditional summary
judgment is reviewed de novo on appeal. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005). An appellate court examines “the entire record in the light most
favorable to the nonmovant, indulging every reasonable inference and resolving any
doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
No-evidence motion for summary judgment. A no-evidence summary judgment
under Rule 166a(i) is equivalent to a pretrial directed verdict, and the same legal
sufficiency standard applies. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51
(Tex. 2003). Summary judgment is appropriate under Rule 166a(i) when there is a
complete absence of evidence of a vital fact; the court is barred by rules of law or
evidence from giving weight to the only evidence offered to prove a vital fact; the
evidence offered to prove a vital fact is no more than a mere scintilla; or the evidence
conclusively establishes the opposite of a vital fact. Id. at 751. Appellate review is de
novo. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
6
ANALYSIS
I. Subject Matter Jurisdiction
We address subject matter jurisdiction as a threshold matter to determine whether
governmental immunity bars AT&T’s claims.
“Sovereign immunity protects the State from lawsuits for money damages.” Tex.
Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002).
“Political subdivisions of the state, including cities, are entitled to such immunity –
referred to as governmental immunity – unless it has been waived.” Reata Constr. Corp.
v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (citing Wichita Falls State Hosp. v.
Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). Governmental immunity also extends to
the Flood Control District as a political subdivision of the state. Harris Cnty. Flood
Control Dist. v. Great Am. Ins. Co., 309 S.W.3d 614, 616 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied).
“Sovereign immunity encompasses immunity from suit, which bars a suit unless
the state has consented, and immunity from liability, which protects the state from
judgments even if it has consented to suit.” Reata Constr. Corp., 197 S.W.3d at 374.
“We have held that sovereign immunity from suit deprives a trial court of subject-matter
jurisdiction.” Id.; see also Miranda, 133 S.W.3d at 224.
AT&T initially sued only the Flood Control District and the City in 2007. AT&T
amended its petition in 2009 to drop the Flood Control District as a defendant in light of
City of El Paso v. Heinrich, 284 S.W.3d 366, 371-77 (Tex. 2009). In its third amended
petition, AT&T added the County Commissioners1 and Marcotte individually as
1
The Commissioners Court of Harris County serves as the Flood Control District’s governing
body. Act of May 15, 1937, 45th Leg., R.S., ch. 360, 1937 Tex. Gen. Laws 714. Despite an overlap in
geographical jurisdiction and leadership, “[t]he District is a conservation and reclamation district that is
separate and distinct from Harris County.” Harris Cnty. Flood Control Dist. v. Great Am. Ins. Co., 359
S.W.3d 736, 743 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see also Harris Cnty. Flood
Control Dist. v. Mann, 135 Tex. 239, 140 S.W.2d 1098, 1101 (1940).
7
defendants. AT&T continued to name the City as a defendant.2
Heinrich explained that “where statutory or constitutional provisions create an
entitlement to payment, suits seeking to require state officers to comply with the law are
not barred by immunity merely because they compel the state to make those payments.”
Heinrich, 284 S.W.3d at 371 (citing W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308
S.W.2d 838, 841 (1958)). “[S]uits to require state officials to comply with statutory or
constitutional provisions are not prohibited by sovereign immunity, even if a declaration
to that effect compels a payment of money.” Heinrich, 284 S.W.3d at 372. “To fall
within this ultra vires exception, a suit must not complain of a government officer’s
exercise of discretion, but rather must allege, and ultimately prove, that the officer acted
without legal authority or failed to perform a purely ministerial task.” Id.
It follows that suits of this nature “cannot be brought against the state, which
retains immunity, but must be brought against the state actors in their individual
capacity.” Id. at 373. “This is true even though the suit is, for all practical purposes,
against the state.” Id. “[A] claimant who successfully proves an ultra vires claim is
entitled to prospective injunctive relief, as measured from the date of injunction.” Id. at
376. As the supreme court observed, these circumstances create a “curious situation.”
Id. at 374. “[T]he basis for the ultra vires rule is that a government official is not
following the law, so that immunity is not implicated, but because the suit is, for all
practical purposes, against the state, its remedies must be limited.” Id.
A. The County Commissioners
The County Commissioners contend that the ultra vires exception to governmental
immunity from suit is inapplicable here because AT&T “alleged no actions whatsoever
by the Commissioners.”
2
AT&T alleged: “The City remains a party to this action because the claims alleged involve the
validity of a City ordinance . . . .” See Heinrich, 284 S.W.3d at 373 n.6 (“For claims challenging the
validity of ordinances or statutes, however, the Declaratory Judgment Act requires that the relevant
governmental entities be made parties, and thereby waives immunity.”) (citing Tex. Civ. Prac. & Rem.
Code § 37.006(b)).
8
According to the County Commissioners, “AT&T simply alleged that the Flood
Control District ‘refused to confirm’ its ‘obligation to bear the expense of relocating
AT&T Texas’s facilities.’” Because the County Commissioners “had no legal duty to
confirm anything to AT&T Texas[,]” the commissioners argue that AT&T’s petition
“contains no allegation that any officer of the District ‘acted without legal authority or
failed to perform a purely ministerial act.’” At most, the County Commissioners contend
that AT&T alleged they were “threatening to commit ultra vires acts.” They conclude
that dismissal for lack of subject matter jurisdiction was warranted because Heinrich
“makes no mention of prospective claims, only prospective relief.”
AT&T responds that the Heinrich exception is satisfied because the Flood Control
District asked the City to direct AT&T to relocate its facilities at no cost to the Flood
Control District. AT&T subsequently wrote a letter dated April 30, 2007, addressed to
the deputy director of the City of Houston Public Works and Engineering Department’s
Engineering and Construction Division; Tom Rackley of the Flood Control District was
cc’d on the letter. AT&T stated in its letter: “AT&T Texas will relocate its facilities
provided that the Harris County Flood Control District . . . submits a utility adjustment
agreement . . . in which the HCFCD agrees to reimburse AT&T Texas for 100% of the
actual costs associated with this relocation.” The City responded with a letter dated May
16, 2007, in which it stated as follows: “The fact that this Public Works and Engineering
project is being undertaken by the Harris County Flood Control District on behalf of the
City does not relieve AT&T from the responsibility to relocate.” The letter continues:
“Should we not have an agreed schedule for relocation within 60 days of the Final
Notice, the City may act in accordance with Section 40-397.”
Based on these circumstances, AT&T argues as follows: “[I]f AT&T Texas had
complied with the City’s relocation directive and waited until the HCFCD refused to
compensate it for relocation costs after the fact, AT&T Texas would have no recourse
because it would be asserting a claim for damages from which the HCFCD and the
Commissioners have governmental immunity.” See, e.g., Rolling Plains Groundwater
9
Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 760 (Tex. 2011).
We agree with AT&T that the circumstances pleaded here are framed to fit within
the ultra vires exception described in Heinrich. As permitted by Heinrich, AT&T sought
prospective declaratory and injunctive relief. See Heinrich, 284 S.W.3d at 369. Suits
such as this to require compliance “with statutory or constitutional provisions are not
prohibited by sovereign immunity;” a suit can be predicated on an officer’s action
undertaken without legal authority, or on an officer’s failure to act. Id. at 372.
To some degree, the separate inquiries into subject matter jurisdiction and the
merits of statutory interpretation unavoidably tend to converge on appeal. Determining
whether the specific act requested of but not performed by a government official is
sufficiently “ministerial” to fit within the ultra vires exception depends in part on what
the statute at issue does – or does not – require the official to do. Cf. Houston Mun.
Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 160 (Tex. 2007) (Brister, J., concurring)
(“A different case might be presented if the plaintiffs alleged the board was clearly
violating some provision of the statute. Article 6243h gives the pension board complete
discretion to interpret the statute, but not to violate it.”). In the context of this case, we
believe the jurisdictional inquiry is appropriately addressed in conjunction with the
determination regarding section 49.223’s meaning.
We also believe that further uncertainty will be added to an already murky area of
the law if we follow the County Commissioners’ suggestion to distinguish between more
emphatic failures to act – for which subject matter jurisdiction exists under the ultra vires
exception – and less emphatic failures to act – for which subject matter jurisdiction does
not exist. Short of receiving a bill from AT&T for already-incurred relocation expenses
and refusing to pay, it is not clear how much more emphatic the targeted failure to act
must be to satisfy the County Commissioners’ conception of ultra vires. As AT&T
correctly notes, pursuit of a judgment declaring AT&T’s right to reimbursement for
already-incurred facility relocation expenses would be fraught with jurisdictional hurdles.
See City of Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007) (per curiam)
10
(Retired firefighters could not pursue declaratory judgment action to recover amounts
previously withheld from lump-sum termination payments in violation of statute; “[t]he
only injury the retired firefighters alleged has already occurred, leaving them with only
one plausible remedy – an award of money damages.”)
B. Marcotte
The convergence of subject matter jurisdiction and the merits of statutory
interpretation is illustrated by Marcotte’s contentions. He argues that there is no evidence
of an ultra vires act on his part because “the District had no statutory obligations under
the Water Code, and the City is empowered by both common law and statute to require
AT&T to relocate its facilities . . . .” As framed by Marcotte, his subject matter
jurisdiction argument is co-extensive with the merits of interpreting section 49.223 and
will be addressed below.
II. Statutory Interpretation
A. Determining the Governing Statutory Interpretation Standard
The parties launch their respective interpretations of section 49.223 from different
starting points.
The County Commissioners and Marcotte invoke the “strict construction” standard
applied in Southwestern Bell Telephone, L.P. v. Harris County Toll Road Authority, 282
S.W.3d 59, 64 (Tex. 2009). They advocate strict construction in reliance on the
following precept: “‘[I]f a statute creates a liability unknown to the common law . . . the
statute will be strictly construed in the sense that it will not be extended beyond its plain
meaning or applied to cases not clearly within its purview.’” Id. (citing Satterfield v.
Satterfield, 448 S.W.2d 456, 459 (Tex. 1969)). According to the County Commissioners
and Marcotte, section 49.223 creates “a liability unknown to the common law” because
the common law rule is that “a utility forced to relocate from a public right-of-way must
do so at its own expense.” Id. at 62.
AT&T counters by arguing that section 49.223 should be liberally construed to
11
achieve its purpose. See Tex. Gov’t Code Ann. § 312.006(b) (Vernon 2013). AT&T
argues that the strict construction standard applied in Southwestern Bell does not reach
this dispute because “AT&T Texas does not assert any claim for ‘liability’ against the
HCFCD, nor does it contend that section 49.223 of the Texas Water Code gives it a cause
of action against the HCFCD for damages.” AT&T stresses that it “asserts a declaratory
judgment claim to resolve a controversy over the proper interpretation of a statute” rather
than a liability claim seeking damages. AT&T further argues that Texas courts have
applied the strict construction standard articulated in Southwestern Bell “only . . . in cases
where a party asserted a statutory claim for damages or a common law claim for damages
based on an underlying statutory duty.”
The parties’ competing arguments make it appropriate to discuss Southwestern
Bell in some detail.
The case arose when Southwestern Bell billed Harris County for the cost of
relocating underground telecommunication facilities located in the public right-of-way
along Westpark Road in connection with construction of the Westpark Tollway. Sw. Bell
Tel., L.P., 282 S.W.3d at 60-61. After Harris County refused to pay, Southwestern Bell
sued seeking reimbursement under the Transportation Code; it also asserted a claim for
inverse condemnation under the Texas Constitution. See Tex. Const. art. I, §§ 17, 19;
Tex. Transp. Code Ann. § 251.102 (Vernon 1999). The trial court granted summary
judgment in favor of Southwestern Bell. Sw. Bell Tel., L.P., 28 S.W.3d at 61. The court
of appeals reversed, holding that Harris County was immune from suit on the statutory
claim and that Southwestern Bell had no vested property interest in the right-of-way for
purposes of an inverse condemnation claim. Id. The Texas Supreme Court affirmed the
court of appeals, holding that (1) “whatever interest SBC has, that interest did not include
the right to require the county to pay for relocation of its facilities;” and (2) “section
251.102 does not clearly waive governmental immunity, and . . . Harris County has not
otherwise waived its immunity from suit . . . .” Id. at 61, 70.
In analyzing whether Southwestern Bell possessed a vested property interest in the
12
right-of-way, the supreme court began with the “‘long-established common law
principle’” that “‘a utility forced to relocate from a public right-of-way must do so at its
own expense.’” Id. at 62 (quoting Norfolk Redevelopment & Hous. Auth. v. Chesapeake
& Potomac Tel. Co., 464 U.S. 30, 34 (1983)). The Texas Supreme Court continued:
“We have said that ‘[i]n the absence of assumption by the state of part of the expense, it
is clear that [utility companies] could be required to remove at their own expense any
installations owned by them and located in public rights of way whenever such relocation
is made necessary by highway improvements.’” Id. (quoting State v. City of Austin, 160
Tex. 348, 331 S.W.2d 737, 741 (1960)); see also City of San Antonio v. Bexar Metro.
Water Dist., 309 S.W.2d 491, 492 (Tex. Civ. App.—San Antonio 1958, writ ref’d) (“The
main purposes of roads and streets are for travel and transportation, and while public
utilities may use such roads and streets for the laying of their telegraph, telephone and
water lines, and for other purposes, such uses are subservient to the main uses and
purposes of such roads and streets.”).3
Southwestern Bell contended that, notwithstanding the common law rule,
Transportation Code section 251.102 required Harris County to pay for telephone facility
relocation costs necessitated by construction of the Westpark Tollway. Southwestern
Bell relied on section 251.102’s provision stating that “‘[a] county shall include the cost
of relocating or adjusting an eligible utility facility in the expense of right-of-way
acquisition.’” Sw. Bell Tel., L.P., 282 S.W.3d at 64 (quoting Tex. Transp. Code Ann. §
251.102).
The supreme court rejected this contention. It noted that a statute creating “‘a
liability unknown to the common law . . . will be strictly construed in the sense that it will
not be extended beyond its plain meaning or applied to cases not clearly within its
purview.’” Sw. Bell Tel., L.P. 282 S.W.3d at 64 (quoting Satterfield, 448 S.W.2d at 459).
Applying this strict construction standard, the supreme court concluded that section
3
The Forest Hill Street Bridge is a “street” for purposes of this appeal. See City of Houston v.
Goings, 795 S.W.2d 829, 832 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (“A public bridge
forming a connecting link in a street or highway is a part of that street or highway.”).
13
251.102 did not overcome the long-established common law principle placing
responsibility for relocation costs on the utility because (1) this provision failed to
“clearly delineate classes of relocations that are eligible for reimbursement;” and (2)
Southwestern Bell’s relocation costs were “not clearly within the statute’s purview.” Id.
at 67.
AT&T does not quarrel with the common law principle’s existence. Instead, it
argues that this principle and the accompanying strict construction standard do not apply
here. AT&T emphasizes that, as permitted by Heinrich, it seeks prospective declaratory
and injunctive relief against individual governmental officers for facility relocation
expenses that have not yet been incurred; it does not assert a “liability” claim against the
Flood Control District or the City under section 49.223 seeking money damages for
already-incurred facility relocation expenses. It also does not assert a takings claim.
Therefore, AT&T contends that it does not invoke section 49.223 to create “‘a liability
unknown to the common law.’” See Sw. Bell Tel., L.P., 28 S.W.3d at 64 (quoting
Satterfield, 448 S.W.2d at 459).
We reject AT&T’s contention because it elevates form over substance. AT&T’s
permissible reliance on the ultra vires pleading device mandated by Heinrich does not
change AT&T’s ultimate aim – namely, to establish “an entitlement to payment” on its
part for facility relocation expenses in connection with reconstruction of the Forest Hill
Street Bridge. See Heinrich, 284 S.W.3d at 371.
AT&T has sued seeking prospective relief “to require” governmental officers “to
comply” with statutory provisions that AT&T relies upon to “create an entitlement to
payment.” See id. In appropriate circumstances, governmental immunity does not bar
suits “to require state officials to comply with statutory or constitutional provisions . . .
even if a declaration to that effect compels the payment of money.” Id. at 372. A
judgment establishing AT&T’s asserted statutory entitlement to payment in these
circumstances would establish liability for utility relocation expenses unknown to the
common law regardless of whether the judgment does so by (1) awarding money
14
damages to AT&T for already-incurred expenses; or (2) prospectively declaring that
governmental officials must comply with a statutory directive that “compels the payment
of money” to AT&T for such expenses when they are incurred. See id. The net effect is
the same.
We conclude that the strict construction standard discussed in Southwestern Bell
applies here. We now examine section 49.223 in light of that standard.
B. Applying the Statutory Interpretation Standard
The parties’ statutory interpretation fight focuses on this portion of section
49.223(a): “In the event that the district . . . in the exercise of the power of eminent
domain or power of relocation or any other power, makes necessary the relocation . . . of
any . . . telephone properties, facilities, or pipelines . . . all necessary relocations . . . shall
be done at the sole expense of the district . . . .” It is undisputed that the Flood Control
District is a “district” for these purposes within the meaning of the Water Code. See Tex.
Water Code § 49.001(a)(1) (Vernon 2008).
AT&T contends that it is entitled to summary judgment in its favor as a matter of
law because “section 49.223 . . . applies any time the HCFCD ‘makes necessary’ the
relocation or alteration of ‘any road, bridge, highway, railroad, electric transmission line,
telegraph, or telephone properties, facilities, or pipelines.’” According to AT&T,
“[U]nless the HCFCD is acting outside of its authority (which no one contends in this
case), whenever the HCFCD makes a relocation necessary, it has a statutory duty to bear
the expense of relocating AT&T Texas’s facilities.” It continues: “The undisputed facts
show that the HCFCD made the relocation of AT&T Texas’s facilities necessary.”
AT&T concludes: “In short, the undisputed evidence shows that the HCFCD has made it
necessary for AT&T Texas to relocate its facilities from the Forest Hill Bridge through
the exercise of its power to plan and execute a flood control project in Harris County.”
The County Commissioners respond that “for the statute to be applicable the act in
question must be that of the District, not that of a third party. Further, the act must have
15
been done in the exercise of a power, not merely a right or a function. Finally, the act
must make necessary the relocation of property.” They contend that all three
prerequisites are missing here and stress that “[t]he request for relocation of the facilities
came from the City, not the Flood Control District.”
Marcotte and the City likewise contend that “it was the City – not the District –
that ‘made necessary the relocation’ . . . [and] . . . exercised the power to direct AT&T to
move its wires.” Quoting section 311.001 of the Texas Transportation Code, Marcotte
and the City further argue that “[a]s a Texas home-rule municipal corporation, the City of
Houston has ‘exclusive control over and under the streets of the municipality,’ . . . .”
Additionally, they argue that the City has “‘paramount jurisdiction’” by virtue of its
status as a Texas home-rule municipal corporation. See City of Breckenridge v. Stephens
Cnty., 120 Tex. 318, 40 S.W.2d 43, 44 (1931); City of Laredo v. Webb Cnty., 220 S.W.3d
571, 575-76 (Tex. App.—Austin 2007, no pet.).4
Resolution of this issue turns on the following facts established in the summary
judgment record.
The Flood Control District is widening the channels of Brays Bayou as part
of Project Brays.
Project Brays will require approximately 30 bridges to be modified or
demolished and rebuilt. Doing so will facilitate enlargement of the main
channel and construction of a regional storm water detention system.
4
“The City of Houston is a home-rule city, deriving its power from article XI, section 5 of the
Texas Constitution.” S. Crushed Concrete, LLC v. City of Houston, No. 11-0270, 2013 WL 561468 at *2
(Tex. Feb. 15, 2013) (citing Tex. Const. art. XI, § 5). “Home-rule cities have the full power of self-
government and look to the Legislature, not for grants of power, but only for limitations on their powers.”
S. Crushed Concrete, LLC, 2013 WL 561468 at *2 (citing Lower Colo. River Auth. v. City of San Marcos,
523 S.W.2d 641, 643 (Tex. 1975), and Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282 (1948)).
“[I]f the Legislature decides to preempt a subject matter normally within a home-rule city’s broad powers,
it must do so with ‘unmistakable clarity.’” In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002) (quoting
Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993)).
AT&T does not contend on appeal that section 49.223 speaks with the “unmistakable clarity” necessary to
preempt the City’s relocation ordinance.
16
The Flood Control District is paying to reconstruct the bridges as part of
Project Brays; the work is being conducted by contractors and consultants
hired and paid for by the district.
Planning for Project Brays was done by the United States Army Corps of
Engineers and the Flood Control District.
The Corps and the Flood Control District identified Forest Hill Street
Bridge, located in and owned by the City, as one of the bridges to be
replaced as part of Project Brays.
The Flood Control District is paying for demolition of the current Forest
Hill Street Bridge and for design and construction of its replacement.
The Flood Control District’s manager for Project Brays, Raouf Farid,
testified that the district is replacing the Forest Hill Street Bridge “under the
supervision and approval of every aspect of it by the City of Houston.”
AT&T owns telecommunications facilities that are located in a public right-
of-way and cross Brays Bayou at the Forest Hill Street Bridge; these
facilities are attached to the bridge.
Section 8 of the Interlocal Agreement between the Flood Control District
and the City states: “Where the City has the right to require a public utility
company . . . to modify and/or replace its facilities at its own cost, the City
shall designate the District as the City’s project manager, and upon written
request . . . direct the public utility company . . . to modify and/or relocate
its facilities . . . at no cost to the City or to the District.”
Pursuant to section 8 of the Interlocal Agreement, the Flood Control
District’s director sent a letter dated February 8, 2007, to the City’s director
of the Department of Public Works and Engineering in which he (1) said
replacement of the Forest Hill Street Bridge “will require the replacement
of various utilities located on the existing bridge;” and (2) asked the City to
17
direct AT&T to “modify or relocate” its utilities at AT&T’s expense in
connection with replacement of the Forest Hill Street Bridge.
The City sent a March 9, 2007, letter to AT&T in which the City directed
AT&T to relocate its facilities at the Forest Hill Street Bridge. AT&T
responded in a letter dated April 30, 2007, in which it stated that it would
relocate its facilities “provided that . . . the HCFCD agrees to reimburse
AT&T Texas for 100% of the actual costs associated with this location.”
The City replied in a May 16, 2007, letter in which it stated: “The fact that
this Public Works and Engineering project is being undertaken by the
Harris County Flood Control District on behalf of the City does not relieve
AT&T from the responsibility to relocate.” The letter continues: “Should
we not have an agreed schedule for relocation within 60 days of the Final
Notice, the City may act in accordance with Section 40-397.”
The Flood Control District will voluntarily build a new Forest Hill Street
Bridge as part of Project Brays to satisfy the City’s standards, criteria, and
requirements, which the City subsequently will maintain.
Farid answered “[n]ot necessarily” to a question asking: “Is the fact that
the – Brays Bayou is being widened, does that contribute to the need to
replace certain bridges?” Farid testified that the bridges “could be left
alone.” He added, “We can leave it like it is and have a narrow channel
there as we have right now.”
Neither AT&T nor the appellees contend that these circumstances give rise to fact issues
precluding summary judgment. To the contrary, all parties contend that the record
establishes the propriety of summary judgment in their favor.
We conclude based on this record that AT&T cannot obtain summary judgment in
its favor under section 49.223, and that the trial court correctly granted summary
judgment in favor of the appellees, because the “relocation costs in this case are not
18
clearly within the statute’s purview . . . .” See Sw. Bell Tel., L.P. 282 S.W.3d at 67. This
is so for two reasons.
The first reason is the City’s involvement in this process. The City’s involvement
is important because the statutory payment inquiry focuses on whether the Flood Control
District “ma[de] necessary the relocation” of AT&T’s facilities “in the exercise of” the
district’s power.
AT&T notes that the Flood Control District has the power to devise plans and
construct works to lessen and control floods in Harris County; remove obstructions from
streams and water courses; use the beds and banks of bayous, rivers, and streams; require
relocation of roads and highways; exercise the right of eminent domain; and “[t]o do any
and all other acts or things necessary or proper to carry into effect” its enumerated
powers. Act of May 15, 1937, 45th Leg., ch. 360 §§ 2.e, 2.j., 9 & 10. AT&T thus
contends: “These rights and powers plainly include the power to demolish and
reconstruct the Forest Hill Bridge and to thereby ‘make necessary’ the relocation of
AT&T Texas’s facilities on the bridge.”
AT&T’s contention erroneously links analysis of the statute’s “makes necessary”
language to the broader demolition and reconstruction of this bridge as part of the larger
Project Brays program. The correct analysis in this case focuses more specifically on
whether the district “ma[de] necessary” the relocation of AT&T’s facilities. The Flood
Control District asked the City to exercise the City’s authority to order the relocation, and
the City complied. The Flood Control District’s larger planning and funding activities
may have been “necessary components of” Project Brays and “but for” causes of the
relocation, but these activities were “certainly not sufficient on their own to cause the
project to be undertaken” or the facilities to be relocated. See Air Liquide Am. Corp. v.
U.S. Army Corps of Eng’rs, 359 F.3d 358, 363 (5th Cir. 2004).
The circumstances in Air Liquide parallel the facts here. The case arose when Air
Liquide and other pipeline owners sued the Port of Houston and the United States Army
Corps of Engineers; the pipeline owners asserted multiple claims in connection with costs
19
attributable to relocating pipelines under the Houston Ship Channel as part of a project
undertaken by the Port and the Corps to widen and deepen the channel. Id. at 360-61.
The project was authorized by federal legislation that required the pipeline owners to bear
pipeline relocation costs. Id. at 361. The Port and the Corps signed a Project
Cooperation Agreement to begin the channel widening and deepening project. Id.
Acting on a request by the Port, the Corps then invoked its federal statutory authority to
require the owners to relocate their pipelines at the owners’ expense. Id.
Among other claims, the pipeline owners sought a declaration that the Port was
responsible for pipeline relocation costs because it had “required” the relocation. See
Tex. Water Code Ann. § 60.102(a) (Vernon 2004) (“If a district in the exercise of the
powers conferred by this subchapter or in the exercise of the power of eminent domain or
the police power requires the relocating, raising, lowering, rerouting, or changing in
grade, or altering in the construction of any . . . pipeline, the relocating, raising, lowering,
rerouting, changing in grade, or altering of construction shall be done at the sole expense
of the district.”).
The Fifth Circuit rejected this claim, concluding that section 60.102(a) “is not
applicable because the Port did not require the relocation – the Corps did.” Air Liquide
Am. Corp., 359 S.W.3d at 362 (original emphasis). The Fifth Circuit’s conclusion did not
change even though the Port’s request was the catalyst for the Corps’ issuance of
relocation notices to the pipeline owners. Id. at 363. “By requiring removal of an
obstacle to a navigable waterway, the Corps was acting pursuant to power delegated to it
by Congress.” Id. “It was pursuant to this power, not the Port’s request, that the Corps
required the relocation.” Id.
Similar reasoning applies in this case. Here, as in Air Liquide, the “district” at
issue contracted with another entity that (1) had authority to compel relocation; and (2)
was not subject to the statutory directive to pay relocation costs. Id.; cf. City of San
Antonio, 309 S.W.2d at 492 (“The City of San Antonio, by statute and by the provisions
of its charter, has control of its streets and can regulate their use by utility companies or
20
anyone else.”). These circumstances do not clearly demonstrate that the Flood Control
District has “ma[de] necessary” the relocation of AT&T’s facilities attached to the Forest
Hill Street Bridge, or that the district has done so “in the exercise of” the district’s power.
AT&T characterizes the City’s relocation directive as “irrelevant” because section
49.223 focuses on “whether the HCFCD caused or initiated the event or condition that
necessitates the relocation . . . .” This contention essentially advocates the use of a “but
for” standard; the Fifth Circuit rejected such a standard in Air Liquide, and we do as well.
See Air Liquide Am. Corp., 359 F.3d at 363.
As AT&T does in this appeal, the pipeline owners tried to bolster their position in
Air Liquide by citing a Texas Attorney General opinion addressing a repealed provision
of the Water Code. See Op. Tex. Att’y Gen. No. MW-412 (1981). The repealed
provision, Texas Water Code section 50.052, provided that if the Flood Control District
“requires” the relocation of “telephone lines, conduits, poles, properties, facilities, or
pipelines,” the relocation “shall be done at the sole expense of the district . . . .” The
Flood Control District sought an opinion on whether this statute required it to bear the
costs for lengthening a bridge. Id. The Texas Attorney General opined: “[I]f the district
widens the channel so as to render the bridge unusable, the district may reasonably be
said to have acted to require the ‘relocation . . . rerouting . . . . or alteration in
construction of . . . properties.’” Id. The Fifth Circuit distinguished the attorney general
opinion because “the Corps, not the Port, required Owners to relocate their pipelines.”
Air Liquide Am. Corp., 359 F.3d at 363. The circumstances addressed in the attorney
general’s opinion likewise are distinguishable from those at issue in this case because the
City required AT&T to relocate its facilities.5
The second reason is project manager Farid’s testimony. He testified that the
Forest Hill Street Bridge “could be left alone.” He further testified: “We can leave it like
5
AT&T also cites Bullock v. Greer, 353 S.W.2d 929, 930 (Tex. Civ. App.—Eastland 1962, writ
ref’d n.r.e.), to support its position on “makes necessary.” Bullock is inapposite because it addresses
“whether the Water District had the power to condemn appellants’ land for the relocation and raising” of
a highway to accommodate a dam. Id. This case presents no issue with respect to condemnation.
21
it is and have a narrow channel there as we have right now.” Even if the statutory inquiry
is broadened to encompass the Flood Control District’s actions in managing Project
Brays as a “but for” cause of relocation, it is by no means clear on this record that Project
Brays “makes necessary” the demolition of Forest Hill Street Bridge or the relocation of
facilities currently attached to the bridge.
Under these circumstances, the relocation costs at issue are “not clearly within the
. . . purview” of section 49.223. Sw. Bell Tel., L.P. 282 S.W.3d at 64 (quoting Satterfield,
448 S.W.2d at 459). Because AT&T has not established its entitlement to payment under
section 49.223 for the relocation costs at issue, the trial court properly granted summary
judgment in favor of the County Commissioners, the City, and Marcotte, and properly
granted summary judgment against AT&T.
CONCLUSION
We affirm the trial court’s orders granting summary judgment against AT&T, and
in favor of the appellees.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce and McCally and Senior Justice Mirabal.6
6
Senior Justice Margaret Garner Mirabal sitting by assignment.
22